AH – 448

IN THE MATTER OF AN ARBITRATION

BETWEEN

St. Lawrence & Hudson Railway Company

AND

Canadian Council of Railway Operating Unions [United Transportation Union & Brotherhood of Locomotive Engineers]

DISPUTE:

The discipline assessed to Locomotive Engineer A. Bourgeois of Montreal.

JOINT STATEMENT OF ISSUE:

On April 9, 1997, Mr. Bourgeois was involved in an incident resulting in a side collision at St. Luc departure yard.

Subsequent to an investigation conducted in that regard, Mr. Bourgeois’ discipline record was debited with a formal caution.

The Union grieved this discipline and contends that the discipline should be removed and that Mr. Bourgeois be compensated for lost earnings pursuant to article 19(c) and (e).

The Company declined this grievance.

FOR THE COUNCIL: FOR THE COMPANY:

(SGD.) R. S. McKENNA (SGD.) G. CHEHOWY

GENERAL CHAIRMAN FOR: DISTRICT GENERAL MANAGER

There appeared on behalf of the Company:

G. Chehowy – Manager, Labour Relations, Toronto

M. Oliphant – Labour Relations Officer, Toronto

J. H. Blotsky – Manager, Operations

B. Yeandle – Road Manager

G. Deciccio – Road Manager

And on behalf of the Council:

R. S. McKenna – General Chairman, Barrie

B. Brunet – Local Chairman, Blainville

A. Verner – Local Chairman, Grande Piles

R. McLellan – Local Chairman, Chateauguay

A hearing in this matter was held in Montreal on Monday, November 3, 1997

AWARD OF THE ARBITRATOR

It is not disputed that on or about April 9, 1997 Locomotive Engineer Bourgeois and crew were involved in the switching of cars, and that during those operations the yard foreman and helper working with the grievor failed to apply hand brakes in the manner required by a Company bulletin dated October 23, 1996. In the result, a cut of some sixteen cars moved on the track, resulting in a side collision with the movement under the control of Locomotive Engineer Bourgeois.

All three employees were held out of service immediately pending the completion of their investigation, which resulted in a loss to them of some five working days, over a period of one week. Following the investigations the grievor was assessed with a written caution, while Yard Foreman Anselmo received twenty-five demerits and Yard Helper Galipeau received twenty.

The Council raises a preliminary issue with respect to the application of article 19 of the collective agreement. Specifically, it objects to the fact that the Company conducted a disciplinary investigation of a carman who was in the vicinity, Mr. Godbout, without advising the grievor or his union representative of the investigation, or providing a copy of the report of that investigation to the grievor and his union. On that basis the Council asserts the principles related in CROA 1937 in support of its position that the discipline should be viewed as null and void.

I deal with that issue at the outset. Article 19(c) does contemplate that an employee is to be given the opportunity to be present at the statement of any person whose evidence “may” have a bearing on his or her responsibility, and to receive copies of any statements so taken. In CROA 1937, where the facts were similar, the Arbitrator commented on the importance of that rule for the purposes of ensuring that the standards of a fair and impartial investigation are adhered to in the processing of discipline in the railway arbitration system. During the course of that award the following comments appear:

Is it any answer in the instant case to say that there was no request on the part of Locomotive Engineer Spring to attend at the investigation of his fellow crew members or to receive copies of their statements? The material before the Arbitrator establishes beyond controversy that the grievor was not advised that such investigations were to take place nor provided notice of their time and location. To suggest that the grievor was entitled to request to be present, but that the Company was under no obligation to advise him that the investigations were taking place is roughly akin to asserting that he has a right without any practical remedy. In my view to so conclude would be to undermine the right of the employee provided in Article 19(c) in a way plainly not contemplated by the intention of that article. If, as the language of the article provides, the employee has a right to request to attend the investigation of other employees which might have a bearing on the degree of his responsibility, it must be implied from the scheme of the article that he or she has a correlative right to be advised that such an investigation will proceed, with reasonable advance notice of when and where it will be held. To conclude otherwise would render the procedural protections of Article 19(c) illusory.

Given the importance of the procedures and protections of Article 19 to employees whose very job security may depend on the outcome of disciplinary proceedings, the Arbitrator is compelled to the conclusion that where the Company is to conduct an investigation in respect of an incident for which the responsibility of an engineer is in the process of being assessed, even if that investigation may also bear on the responsibility of the other employees, to the extent that their evidence may bear on the responsibility of the engineer, there is an obligation upon the Company to provide reasonable notice of such proceedings to the engineer, thereby allowing the engineer to exercise the right to request to be in attendance, to receive copies of statements and to offer rebuttal, if necessary.

In the instant case it is not disputed that the Council was not given notice of the Company’s investigation of Carman Godbout. It now asserts that the outcome of that investigation is in fact irrelevant to the grievor’s responsibility. The Union, and the Arbitrator, are compelled to accept the employer’s characterization of the carman’s evidence, and cannot know directly whether evidence that would mitigate the grievor’s responsibility could have been elicited from the employee in question. The fact is that there was no notice of that investigation provided to the grievor or to his bargaining agent. It appears that only on April 24, 1997 did Mr. Brunet, the grievor’s Union representative, learn of the fact that the carman had in fact been investigated, apparently through information provided to him by the carman’s union representative.

If this were the sum total of the facts there might be some substantial basis to the objection which is brought by the Council in this case, that the discipline should be null and void. However, the Arbitrator is troubled by one further aspect of this matter. It is not disputed that at the time the Council learned of the investigation of Carman Godbout, discipline had not yet issued in respect of Mr. Bourgeois, who received his discipline form only on May 2. Notwithstanding that fact, there was no attempt on the part of the Council to raise an objection with the Company or seek, at that date, to re-open the investigation and obtain a copy of the statement of Mr. Godbout. In these circumstances the Arbitrator is compelled to conclude, bearing in mind that these provisions must be applied equitably, that the Council effectively waived any objection which it might have had in respect of the Company’s failure to observe the requirements of article 19(c). It is simply too late to raise this matter at arbitration, effectively for the first time, when by being more candid and forthright the Council could have allowed the Company to repair the damage, or otherwise take its risks, by bringing the matter to its attention prior to the issuing of the discipline. In my view these facts distinguish the case at hand from CROA 1937, and I cannot accede to the suggestion that the discipline should be viewed as null and void.

I turn then to the issue of the merits of the discipline assessed against Mr. Bourgeois. On the basis of the facts adduced, I am satisfied that there is much to be said for the submission of the Council concerning the interpretation of the directive of the Company dated October 23, 1996. Specifically, Locomotive Engineer Bourgeois is found to have offended the note at the outset of the directive, item 28.1 which states: “Crew members are responsible to inquire and confirm with each other that equipment is left in accordance with these instructions.” It is true, as the Company’s representatives point out, that during the course of his investigation Locomotive Engineer Bourgeois admitted that he did not make a detailed inquiry of his crew members with respect to the manner in which they had secured the handbrakes for the sixteen cars in question. On that basis it would appear that there was a violation of the directive by the grievor. In mitigation, however, it also appears that the employees on the ground were given very little direct instruction or explanation as to the routine to be followed or the nature of the questions that should be put to fellow crew members to remain in compliance with item 28.1. Without minimizing the importance of this directive, and the safety sensitive nature of the matters addressed in the bulletin of October 23, 1996, I am compelled to conclude that there is a mitigating dimension with respect of the responsibility of the locomotive engineer in the case at hand.

When regard is had to the entirety of the evidence, I am satisfied that the locomotive engineer was deserving of discipline, and that a caution was appropriate in the circumstances. I have more difficulty, however, with the fact that the grievor was held out of service for five days, causing him a substantial loss of personal income. In my view that penalty is out of proportion with his own responsibility, regard being had to the mitigating dimensions discussed above. For these reasons the Arbitrator is of the view that the discipline should be reduced, with the grievor’s record to contain a written caution in respect of the incident of April 9, 1997, but with the grievor being compensated fully for the loss of wages and benefits which he incurred. On the foregoing basis, the grievance is allowed, in part.

Dated at Toronto November 4, 1997 (original signed by) MICHEL G. PICHER

ARBITRATOR